Maule v. Independent School Dist. No. 9 of Tulsa County

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Maule v. Independent School Dist. No. 9 of Tulsa County
1985 OK 110
714 P.2d 198
57 OBJ 22
Case Number: 59645
Decided: 12/24/1985
Supreme Court of Oklahoma


Appeal from the District Court Union County.

Certiorari to the Court of Appeals, Division 3.

¶0 This appeal was lodged after the district court refused to issue a writ of mandamus to compel recognition by the Union Board of Education of the Union Federation of Teachers as the bargaining representative for the professional educators in the school district. The Court of Appeals affirmed the trial court.

Certiorari Granted; Opinion of Court of Appeals Vacated; Judgment of Trial Court Reversed and Remanded.

Frederic N. Schneider, III, Boone, Smith, Davis & Hurst, Tulsa, Lana Jeanne Tyree, Oklahoma City, for appellants.

Rosenstein, Fist & Ringold by J. Douglas Mann, Tulsa, for appellees.

Karen L. Long, Gen. Counsel, Okl. Educ. Ass'n, Oklahoma City, for intervenor-appellee.

KAUGER, Judge.

[714 P.2d 199]

¶1 This appeal was lodged after the trial court refused to issue a writ of mandamus compelling the Union Board of Education (appellee-Board), to recognize the Union Federation of Teachers (appellants-UFT), as the bargaining representative for the teachers employed by Union School, Independent School District No. 9. The issue presented is the proper role of the Board in resolving the competing claims of rival labor organizations seeking to represent the teachers as their collective bargaining agent. We find that a local school board has an affirmative obligation to participate in the settlement of unresolved disputes between competing bargaining organizations, and that its responsibility to resolve an apparent impasse is prescribed by 70 O.S.Supp. 1982 § 509.2 .

¶2 Union Classroom Teachers Association (intervenor-appellee-UTCA) has been the sole bargaining agent for the professional educators

¶3 The Board, nonetheless, allowed UTF to hold an "election" on school premises. The election was an exercise in futility, in part because of the Board's "hands-off" policy, and in part because of a boycott encouraged by UCTA. As a consequence, less than 50% of the teachers voted. (161 out of 361) UFT subsequently sought a writ of mandamus to compel the Board to recognize it as the teachers' representative. The trial court issued an alternative writ of mandamus on April 14, 1982, ordering the Board either to recognize UFT or to appear before the Court on May 20, 1982, and show cause for its refusal to do so. After UFT presented its evidence at the May hearing, the Board's demurrer to the evidence was sustained because UFT's authorization cards were not certified, and because the court could not discern the number required for majority representation. The application for mandamus was denied and the previously issued alternative writ was dissolved. The Court of Appeals affirmed the trial court's decision.


¶4 Issuance of a writ of mandamus requires a clear legal right vested in the petitioner, refusal to perform a plain legal duty which does not involve the exercise of discretion, the adequacy of the remedy provided by the writ, and, the inadequacy of other relief.


¶5 A legal right to be recognized as the bargaining representative vests in an organization of it is so designated by a majority of the professional educators within a school district. UFT alleges that it represents a majority of the educators; the evidence presented in the trial court does not indicate otherwise. On the contrary, the superintendent of Union Public School testified that an up-to-date list of the certified employees of the Union public schools, as of December, 1981, was given to UFT. According to the list, there were 361 teachers in the district exclusive of administrators and supervisory personnel. After comparing the signed negotiation authorization cards with the list provided by the Board, UFT's accountant concluded that over 50% [714 P.2d 201] of the 361 professional educators listed had signed UFT negotiation authorizations. UCTA contends that it also has a majority, because under the same guidelines, its accountant determined that it possessed signed negotiation authorizations for more than 50% of 387 names on a list of certified employees, provided by the administration including administrators and supervisory personnel.

¶6 Definition of the composition of the appropriate bargaining unit necessarily precedes the determination of majority status.

¶7 The federal courts have held that if a union and employer enter into a stipulation defining the bargaining unit, the National Labor Relations Board is bound by the stipulated terms.

¶8 The Board contends that it had lawfully recognized UCTA nine years earlier, that there was a currently valid and effective negotiations agreement, and that, therefore, UCTA should not be required to submit its cards to a neutral third party for verification. Majority support, however, is [714 P.2d 202] not an immutable factor; when it shifts, the identity of the bargaining representative will shift as well.


¶9 The Board refused to perform a plain, legal, non-discretionary duty. The recognition statute provides that the Board shall recognize a (majority) professional organization.

¶10 All parties to this appeal have argued that the use of authorization cards to determine representation status between competing labor organizations is not within the purview of 70 O.S.Supp. 1982 § 509.2 , and that the ambiguity of the statute is responsible for the present impasse. Without expressing ourselves as to the accuracy of that assessment, having reviewed the provisions of § 509.2, which provide that upon receipt of an employee petition, the Board shall call a secret ballot election,

¶11 A principal object of statutory construction is to determine the legislative intent

¶12 Our refusal to utilize the election procedure for teachers in this case, merely because the average number of students in daily attendance falls below an entirely arbitrary norm, would be tantamount to judicial condonation of avoidable labor unrest and the inevitable and continuous disruption of public education in the Union School District, and potentially in others like it. Failure to recognize § 509.2 procedures would result in an unreasonable application of a special law. This would be especially ironic in this instance because Union School District is located in Tulsa County and is contiguous to one of the two districts favored by the law. Unequal application of the Act to the teachers in Tulsa County, based irrationally on the vagaries of the situs of their employment, violates the Okla. Const. art. 5, § 46

¶13 Discrimination between teachers employed by school districts based solely on population offends art. 5 § 46.


¶14 The last elements necessary before a writ of mandamus can be issued are the inadequacy of other relief and the efficacy of this writ. The statute provides no sanctions for violations of its provisions.

¶15 This cause is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.


¶17 DOOLIN, V.C.J., and HODGES, OPALA and ALMA WILSON, JJ., concur.

¶18 SIMMS, C.J., concurs in part and dissents in part.



1 The guidelines are provided in 70 O.S.Supp. 1982 § 509.2 :

"The local board of education shall recognize a professional organization that secures authorization signed by a majority of the professional educators designating said organization as their representative for negotiations. The members of the professional organization shall be professional educators employed by and serving in the district they propose to represent. Designation of the bargaining representatives shall be made by the recognized organization. Any person who desires not to be represented by any organization, as provided in this section, may so state in writing to his board of education.

However, all school districts with an average daily attendance of thirty-five thousand (35,000) or more shall adopt the following method for choosing the professional organization: A. Local boards of education shall recognize an employee organization designated by an election of the employees in an appropriate bargaining unit as the exclusive representative of all the employees in such unit. The recognition of such employee organization shall be made by the local board no later than fourteen (14) days after said election.

B. 1. Within fourteen (14) days of the receipt of an employee petition filed by or on behalf of twenty-five percent (25%) or more of the employees in a unit, such petition calling for an election to determine which, if any, employee organization represents the employees in a bargaining unit, the local board of education shall verify all names appearing on the petition. The board shall verify that the names are those of bona fide members of the unit and that the challenging numbers are correct.

2. The petition calling for the secret ballot election shall contain only the names of employees of the bargaining unit who have signed and dated said petition. The time for signing the petition shall be within thirty (30) days of the first day of classes. Provided, the first day of classes shall serve as the beginning date for all subsequent petition drives.

3. Any employee in the bargaining unit shall have the right to challenge the validity of any or all names appearing on the petition. Such challenge shall be filed with the local board of education no later than five (5) days after receipt of said petition. After the challenge period expires and the petition is validated by the local board as having the sufficient percentage of names, the local board shall call for a secret ballot election.

C. 1. The election shall be held not less than thirty (30) days nor more than forty-five (45) days after the receipt of the petition, to determine which, if any, employee organization shall legitimately represent the unit. No election shall be directed to be held by a local board in a bargaining unit within which a valid election was held in the preceding two (2) years. . . ."

2 Oklahoma has 615 school districts. See 1983-84 Annual Report of the Oklahoma State Dept. of Education, Vol. 3, p. 2.

3 The term professional educators is defined by 70 O.S. 1981 § 509.4 as:

"Professional educators shall be defined as certified public school teachers. Provided, principals and assistant principals in all school districts with an average daily attendance of fifteen thousand (15,000) or more shall constitute a separate entity for purposes of collective bargaining but shall be subject to the same procedures and regulations set forth in this act for professional educators."

4 A sanctioned election is one held with official permission of the Board the outcome of which the Board ratifies. Johns v. Allen, 231 F. Supp. 852, 857 (D.Del. 1964).

5 Draper v. State, 621 P.2d 1142, 1147 (Okla. 1980); State Highway Comm. v. Green-Boots Const. Co., 199 Okl. 477, 187 P.2d 209, 217 (1947); Witt v. Wentz, 142 Okl. 128, 286 Pac. 796-97 (1930).

6 See note 1, supra.

7 NLRB v. SAC Const. Co., Inc., 603 F.2d 1155, 1157 (5th Cir. 1979).

8 The Negotiation Agreement § 1 provides in part:

"The Board recognizes the Association as exclusive representative of all regularly appointed certified public schoolteachers of the Union School District except those employed on a per diem or hourly basis or those designated by the Board to hold positions which it classifies as administrative or supervisory. . . ."

9 N.L.R.B. v. Sonoma Vineyards, Inc., 727 F.2d 860, 865 (9th Cir. 1984); cert. denied §§§ U.S. §§§, 105 S. Ct. 130, 83 L. Ed. 2d 71 (1984). This same principle, that the parties may stipulate to the composition of the bargaining unit, has been cited with approval in the public sector bargaining context as well. See e.g. Connecticut State Board of Labor Relations, Twenty-First Annual Report 1-3 (1967).

10 Stone v. Johnson, 690 P.2d 459, 462 (Okla. 1984); See also Burlington Fire Fgtrs v. City of Burlington, 142 Vt. 434, 457 A.2d 642-43 (1983).

11 Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201, 1214 (1983); New Jersey v. Haskell, 100 N.J. 469, 495 A.2d 1341 (1985).

12 The National Labor Relations Act § 9, 29 U.S.C. § 159 (1973) provides in part:

"(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. . . ."

13 See note 1, supra.

14 NLRB v. SAC Const. Co., Inc., see note 7, supra.

15 Wauwatosa Board Of Education, WERC Decision No. 8300 A. Aff'd 1 PBC p. 10, 303 (Wisc. Cir.Ct. 1968).

16 See note 1, supra.

17 Thompson v. Presbyterian Hosp. Inc., 652 P.2d 260, 262 (Okla. 1982); Neese v. Shawnee Medical Center Hospital, 626 P.2d 1327, 1331 (Okla. 1981); Jordan v. General Motors Corp., 590 P.2d 193, 196 (Okla. 1979); Martin v. Stratton, 515 P.2d 1366, 1368 (Okla. 1973).

18 See note 1, supra.

19 Oldham v. Drummond Bd. of Ed. of Ind. Sch. Dist. # 1-85, 542 P.2d 1309, 1311 (Okla. 1975), State v. Hunt, 286 P.2d 1088, 1090 (Okla. 1955).

20 See note 1, supra.

21 Oklahoma State Department of Education 1981-82 Annual Report, p. 247.

22 An alternative to a secret election is the submission of the cards to an independent third party. In Ass'n of Classroom Teachers of Moore v. Bd. of Ed., 567 P.2d 979, 982 (Okla. 1977) we held that an offer to submit authorization cards was a reasonable means to prove majority status. The Association prevailed because the trial court appointed officers to examine and verify the signed authorizations. This was not an abuse of the trial court's powers in Moore, nor would it have been inappropriate in this case. We recognize that inherent authentication problems are compounded when the cards of two organizations are involved. It was presumably for this reason that the Legislature enacted the election procedures of § 509.2. The specific issue raised in Moore was whether a school board, in fulfilling its statutory duty under 70 O.S. § 509.2 to recognize professional organizations which have secured signed authorizations by a majority of professional educators, can demand that it personally review and examine the signed authorizations, rather than submitting the signed authorization cards to an independent third party for examination. In Association of Class. Teach. v. Independent S.D. # 89, 540 P.2d 1171 (Okla. 1975), the bargaining agent was not challenged by a contender, and the bargaining agreement contained a provision for the appointment of a neutral third party to serve on the committee if a conflict arose on contract negotiations. The bargaining agreement in this case does not contain this provision. Also see, note 1, supra.

23 The purpose is provided in 70 O.S. 1981 § 509.1 :

"It is the purpose of this act to strengthen methods of administering employer-employee relations through the establishment of an orderly process of communications between school employees and the school district."

24 Oklahoma City News Broadcasters Ass'n v. Nigh, 683 P.2d 72, 75 (Okla. 1984); Walker v. St. Louis-San Francisco Ry Co., 671 P.2d 672-3 (Okla. 1983); Jackson v. Independent School Dist. No. 16, 648 P.2d 26, 29 (Okla. 1982).

25 Midwest City v. Harris, 561 P.2d 1357-58 (Okla. 1977); Adams v. Fry, 204 Okl. 407, 230 P.2d 915, 917 (1951).

26 Smull v. Delaney, 175 Misc. 795, 25 N.Y.S.2d 387, 395 (1941). Also see, 2B Sutherland, "Statutory Construction", p. 600, § 55.02 (4th ed. 1984).

27 Wooten v. Hall, 442 P.2d 334, 336 (Okla. 1968); Bd. of Ed. of City of Okmulgee v. State Bd. of Ed., 201 Okl. 32, 200 P.2d 394, 397 (1948).

28 R. Aldisert, "Hard Core Judicial Process Problems Facing Judges in the 80's", p. 34 (1982).

29 See note 23, supra.

30 Special laws prohibited by the Okla. Const. art. 5, § 46 are those which do not have a uniform operation and which apply to less than the whole of a class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances. Okla. City v. Griffin, 403 P.2d 463, 465 (Okla. 1965); Fenimore v. State, 200 Okl. 400, 194 P.2d 852, 854 (1948). The Constitution provides:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

. . . . .

Regulating the affairs of counties, cities, towns, wards, or school districts; (Emphasis supplied)

. . . . .

31 Uniform application of general laws is prescribed by the Okla. Const. art. 5, § 59 which states:

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

32 Opala, J., dissenting in Ind. Schl. Dist. No. 89 of Okla. Co. v. Okla. City Fed. of Tchrs., 612 P.2d 719, 725-26 (Okla. 1980). See also Wilkinson v. Hale, 184 Okl. 165, 86 P.2d 305, 307 (1939); Union School District # 1 v. Foster Lumber Co., 142 Okl. 260, 286 Pac. 774-75 (1930); Bradford v. Cole, 95 Okl. 35, 217 Pac. 470, 472 (1923).

33 Tulsa Exposition & Fair Corp. v. Bd. of Co. Com'rs., 468 P.2d 501, 505 (Okla. 1970).

34 Dickinson v. Perry, 75 Okl. 25, 181 Pac. 504, 509 (1919).

35 Section, § 509.1 was amended in 1983 to provide that a district court has the power to grant relief to the issuance of injunctions. This amendment became effective after this cause of action accrued, however, this remedy is inadequate because an injunction restrains a party from acting. Sawyer Stores v. Mitchell, 103 Mont. 148, 62 P.2d 342, 356 (1936).

36 Association of Classroom Teachers v. Ind. Schl. Dist # 89, 540 P.2d 1171, 1174 (Okla. 1975).

37 The function of a writ of mandamus is provided in 12 O.S. 1981 § 1451 :

"The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term, or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion."


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